Patna High Court
Dr. Ram Pravesh Singh & Ors vs The State Of Bihar & Ors on 16 January, 2017
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.354 of 2016
Arising out of
Civil Writ Jurisdiction Case No. 13891 of 2015
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1. Dr. Ram Pravesh Singh, son of Late Muni Lal Singh, resident of C/o Late Braj
Ballabh Kumar, Nandgaon, P.S.- Shashtri Nagar, Town & District- Patna.
2. Dr. Anil Kumar Sinha, Son of Sri Sheo Prasad Singh, Resident of Ramnagar,
P.O & P.S.- Silao, District Nalanda.
3. Dr. Sarangdhar Singh, son of Late Dip Narain Singh, resident of At & P.O.
Kumarkhand, P.S.- Kumarkhand, District- Madhepura.
4. Dr. Pramod Kumar, son of Sri Paramhans Roy, Resident of Village- Bajidpur,
P.O.- Bajidpur Saidat, P.S.- Bidupur, District- Vaishali.
5. Dr. Kumar Amitabh, son of Sri Arvind Kumar Singh, Resident of Mohalla-
Bharat Raut, Katra, Hajipur, District Vaishali.
6. Dr. Anupama, Daughter of Sri Nawal Kishore Prasad Singh, Resident of Anand
Suman Niwas, Bhaisasur, Kumhar Toli, Ranchi Road, Biharsharif, District
Nalanda.
7. Dr. Ashok Kumar, son of Dudheshwar Singh, Village- Tarari, P.O. Tarari, P.S.-
Daudnagar, District- Aurangabad.
8. Dr. Manoj Kumar Singh, son of Late Shiv Nandan Singh, resident of Shaligram
Sadan, Upper Tola, J.P. Pande Lane, Jogsar, P.O. Naya Bazar, P.S.- Adampur,
District- Bhagalpur.
9. Dr. Saryug Mandal, son of Late Jamuna Mandal, resident of Sri Mohan Thakur
Lane ,P.O. & P.S. Barari, District Bhagalpur.
10. Dr. Ena Bahan, son of Dr. Ramadhar Prasad, Resident of 7 M, F-4/2
Bahadurpur Housing Colony, Kankarbagh, Town & District Patna
11. Dr. Bidyanand Mahto, son of Sri Janak Mahto, resident of Village & P.o
Mohammadpur Koari, P.S. Waini, Via- Waini, District- Samastipur.
12. Dr. Mukesh Kumar Sinha, son of Late Ram Chandra Prasad, resident of Ram
Raji Road, Maripur, P.O. Muzaffarpur, P.S- Kazi, Mohammadpur, Town &
Patna High Court LPA No.354 of 2016 dt.16-01-2017
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District- Muzaffarpur.
13. Dr. Rajeev Kumar Jha, son of late Prabodh Kumar Jha, Resident of Co-
operative Colony, 52, Bigha, Laxmi Sagar, P.S. Vishwaridyalaya Thana,
District- Darbhanga.
14. Dr. Jay Prakash Yadav, son of Sri Kokay Yadav, Resident of At- Ramdularpur,
P.O.- Champanagar, P.S Nathnagar, District Bhagalpur.
15. Dr. Dhananjai Singh, Son of Sri S.N. Sinha, Resident of Village- Kumhra, P.O.
Karkain, P.S.- Ghoswari, District Patna.
16. Dr. Rajnish Kumar Singh, son of Sri Devendra Singh, Resident of At & P.O.
Kauria Tole Raman Rai, P.S.- Bhagwanpur Hat, District Siwan.
17. Dr. Rajeshwar Rai, Son of Sri Mukhtar Rai, Resident of Village- Tawakli, P.O.
Dayalpur P.S.- Ekma, District Chapra (Saran)
18. Dr. Manoj Kumar Singh, Son of Sri Raj Narayan Singh, Resident of Shiv Shakti
Colony Road No. 24 K, P.S.- Rajiv Nagar, Rajiv Nagar, District Patna.
19. Dr. Ali Akbar, son of Sri Shamsuddin Ansari, Resident of At- Daulatpur, P.O.
Rajpur P.S. Raghunathpur, District- Siwan.
20. Dr. Sima Kumari, Daughter of Sri Sudhir Prasad Jaiswal, resident of 203 G.B.
Colony Tilka Manjhi, P.S.- Tilka Manjhi, Town & District- Bhagalpur.
21. Dr. Sagar Kumar, son of Sri Chamak Lal Sharma, Resident of At- Aliganj,
P.O.- .Mirjanhat, District Bhagalpur.
22. Dr. Arun Kumar, son of Sri Suba Yadav, Resident of village- Paharpur, P.O. &
P.S.- Kaler, District- Arwal.
23. Dr. Suraj Singh Sisodia, Son of Chandrika Singh, Resident of Gahlot Niwas
Kazi Mohalla, District Nalanda.
24. Dr. Minal Vijay, Daughter of Dr. H.B. Singh, Resident of 21, Nirala Nagar
Digha, Town & District- Patna.
.... .... Appellant/s
Versus
1. The State of Bihar through the Principal Secretary, Science & Technology
Department, Government of Bihar, Technology Bhawan, Bailey Road, Patna.
2. The Principal Secretary, Science & Technology Department, Government of
Bihar, Technology Bhawan, Bailey Road, Patna.
3. The Deputy Secretary, Science & Technology Department, Government of
Bihar, Technology Bhawan, Bailey Road, Patna.
Patna High Court LPA No.354 of 2016 dt.16-01-2017
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4. The Director, Science & Technology Department, Government of Bihar,
Technology Bhawan, Bailey Road, Patna.
5. The Bihar Public Service Commission, through its Secretary, Bailey Road,
Patna
6. The Chairman, Bihar Public Service Commission, Bailey Road, Patna
7. The Secretary, Bihar Public Service Commission, Bailey Road, Patna
8. The Joint Secretary-cum-Examination Controller, Bihar Public Service
Commission, Bailey Road, Patna
9. Dr. Swetambara, Daughter of Prof. Lalan Jha, Resident of Ward No. 18, Lane
of Mohan Singh Office, Gangjala, Nagarpalika Road, P.S.- Saharsa, District-
Saharsa.
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Dhruva Mukherjee, Sr. Advocate
Mr. Ganesh Singh, Advocate
For the State : Mr. Dhurjali Kumar Prasad, G.P.-7
For the B.P.S.C. : Mr. P.N. Sahi, Sr. Advocate
Mr. Sanjay Pandey, Advocate
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
ORAL JUDGMENT
(Per: HONOURABLE THE ACTING CHIEF JUSTICE)
Date: 16-01-2017
Heard learned counsel for the parties.
2. The challenge in the present Letters Patent Appeal is
to an order passed by the learned Single Bench of this Court on 16th of
December, 2015 in C.W.J.C. No. 13891 of 2015 whereby, the writ
application filed by the appellants challenging rejection of their
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candidature for appointment to the post of Assistant Professor in
Engineering Colleges was dismissed on the ground that they are not
exempted from passing NET/SLET/SET which exemption is only
available to a candidate who has obtained Ph.D. degree in accordance
with the University Grants Commission (Minimum Standard and
Procedure for Award of Ph.D. Degree) Regulations, 2009 (hereinafter
referred to as the "2009 Regulations").
3. The learned Single Bench relied upon the Supreme
Court judgment reported as P. Suseela & Ors. Vs. University Grants
Commission & Ors., (2015) 8 SCC 129 wherein the legality and
validity of the 2009 Regulations was upheld and also another Division
Bench judgment of this Court reported as Dr. (Mrs.) Renuka Sharma
Vs. Bihar Public Service Commission & Ors., 2007 (4) PLJR 762
wherein, it was held that a person who is not qualified as prescribed in
the Rules is not competent to be appointed as Teacher in the
University.
4. The 2009 Regulations dated 1st of June, 2009 were
published in the official Gazette on 11th of July 2009. After the
publication of the said Regulations, the Government of Bihar framed
Rules under proviso to Article 309 of the Constitution of India titled
as „Bihar Engineering Education Service Rules, 2014‟ (for short "the
Rules"). The relevant educational qualification required for
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appointment to the post of Assistant Professor as per the Rules reads
as under:-
Sl. Post Qualification Experience
No.
1 Assistant Engineering & Technology
Professor B.E./B.Tech. and M.E./M. Tech. in relevant
branch with First Class or Equivalent either in
B.E./B.Tech. or M.E./M.Tech.
Humanities and Sciences
1) Good academic record as defined by the
concerned university with at least 55% marks (or
and equivalent grade in a point scale wherever
grading system is followed) at the Master‟s Degree
level in a relevant subject from an Indian
University, or an equivalent degree from an
accredited foreign university.
2) Besides fulfilling the above qualifications, the
candidate must have cleared the National
Eligibility Test (NET) conducted by the UGC,
CSIR or similar test accredited by the UGC like
SLET/Set.
3) Notwithstanding anything contained in sub-
clauses (1) and (2) candidates, who are PhD, or
have been awarded a Ph.D. Degree in accordance
with the University Grants Commission (Minimum
Standards and Procedure for Award of Ph.D.
Degree) Regulations, 2009, shall be exempted
from the requirement of the minimum eligibility
condition of NET/SLET/SET.
5. In pursuance of such statutory Rule, an
advertisement was published by the Bihar Public Service Commission
inviting applications for various posts including that of Assistant
Professor. The eligibility conditions are in the same terms as the
Statutory Rules. The appellants are the candidates who have obtained
Ph.D. degree prior to the notification of 2009 Regulations. They have
been declared ineligible to be considered for appointment for the
reason that they are not holding the Ph.D. degree in terms of the 2009
Regulations. The learned Single Bench relied upon P. Suseela‟s case
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(supra) to hold that the appellants are not eligible for the post of
Assistant Professor as they are not possessed of Ph.D. degree in terms
of the 2009 Regulations.
6. Learned counsel for the appellants argues that
exemption is applicable to two categories of candidates as per Clause
3 of the qualification referred above, one who are Ph.D. and secondly
the candidates who have been awarded Ph.D. degree in accordance
with the 2009 Regulations. It is, thus, contended that the appellants
who have obtained Ph.D. degree prior to publication of the 2009
Regulations are eligible to be exempted from qualifying
NET/SLET/SET test as per the first condition. It is argued that in P.
Suseela‟s case (supra), the legality and validity of 2009 Regulations
was in question which was found to be valid whereas, in the present
case, the appellants are claiming right on the basis of statutory Rules
which grants exemption not only to Ph.D. degree holders in terms of
2009 Regulations but also the other Ph.D. degree holders. Therefore,
the candidates who have obtained degree prior to publication of 2009
Regulations cannot be declared ineligible and the finding recorded by
the learned Single Bench to that effect is not sustainable in law.
7. Learned counsel for the appellants further refers that
All India Council of Technical Education in the notification published
on 4th of January, 2016, though after the advertisement was issued to
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contend that even AICTE has revised the qualifications required for
appointment as Assistant Professor in the Engineering Colleges. The
relevant condition reads as under:-
"A. ASSISTANT PROFESSOR:
i. Master‟s degree in relevant subject of Humanities &
Sciences with first class or equivalent, at Bachelor‟s or
Master‟s Level from any recognised Indian University.
ii. Besides fulfilling the above qualification, the candidate
must have cleared the National Eligibility Test (NET)
conducted by the UGC, CSIR or similar test accredited
by the UGC like SLET/SET.
iii. Notwithstanding anything contained in sub-clauses (i)
and (ii) to this clause; a candidate, who has a Ph.D.
Degree awarded before 2009, or has been awarded a
Ph.D. Degree after 2009 in accordance with the
University Grants Commission (Minimum Standards
and Procedure for Award of Ph.D. Degree)
Regulations, 2009, shall be exempted from the
requirement of the minimum eligibility condition of
NET/SLET/SET for recruitment and appointment as
Assistant Professor in Technical Institutions."
8. Learned counsel for the appellants further refers to
the amended U.G.C. Regulations as notified on 4th of May, 2016
which also specifies that the Ph.D. degree holders prior to July 11,
2009, shall also be exempted from qualifying the NET/SLET/SET
examination. The relevant clause reads as under:-
"Further, the award of degrees to candidates registered for the
M.Phil/Ph.D. programme prior to July 11, 2009, shall be
governed by the provisions of the then existing Ordinances/By
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laws/Regulations of the Institution awarding the degrees and the
Ph.D. candidates shall be exempted from the requirement of the
minimum eligibility condition of "NET/SLET/SET for
recruitment and appointment of Assistant Professor or
equivalent positions in Universities/Colleges/ Institutions
subject to the fulfillment of the following conditions:-
(a) Ph.D. degree of the candidate awarded in regular
mode only;
(b) Evaluation of the Ph.D. thesis by at least two
external examiners;
(c) Candidate had published two research papers out
of which at least one in a refereed journal from
out of his/her Ph.D. work;
(d) The candidate had presented two papers in
seminars/conferences from out of his/her Ph.D.
work;
(e) Open Ph.D. viva-voce of the candidate had been
conducted."
9. On the other hand, learned counsel for the State
relied upon a Division Bench judgment of this Court reported as Dr.
Rakesh Kumar Singh & Ors. Vs. The Union of India & Ors., 2015 (4)
PLJR 477 wherein, relying upon P. Suseela‟s case (supra) the
candidates who have not obtained Ph.D. degree in accordance with
the 2009 Regulations were found to be ineligible for appointment.
10. We have heard Learned Counsel for the parties and
find that the order of the Learned Single Judge is not sustainable in
law. The Dr. Rakesh Kumar Singh‟s case (Supra) pertains to
appointment to the post of Assistant Professors in different subjects in
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the Universities of Bihar and various constituent colleges of such
Universities. The application for such posts were advertised on 14th of
September, 2014. The University has framed statute for appointment
of Teachers for the Universities of Bihar and its constituent colleges
called „The Statutes for Appointment of Teachers (Assistant Professor
Grade) for the Universities of Bihar, 2014. The relevant condition in
the said statute reads as under:-
"3.3.2 A candidate must have passed NET/SET or equivalent
test accredited by U.G.C.
3.3.3The Candidates who have obtained Ph.D. Degree on the basis of Minimum Standard and Procedure Regulation, 2009 framed by the University Grants Commission for M.Phil./Ph.D. Degree, shall be exempted from passing the National Eligibility Test."
11. It was the said condition which was being examined by the Division Bench of this Court in Dr. Rakesh Kumar Singh‟s case (supra) wherein, it has been held that the candidates who have obtained Ph.D. Degree prior to notification of 2009 Regulations are not eligible for appointment as Assistant Professor. The said finding is based upon the language of the Rules under consideration in the said case, where the exemption was granted only to the Candidates who have obtained Ph.D. Degree on the basis of Minimum Standard and Procedure Regulation, 2009 framed by the University Grants Commission for M.Phil./Ph.D. Degree. But in the present case, the Patna High Court LPA No.354 of 2016 dt.16-01-2017 10/11 statutory rules framed contemplate exemption to two categories i.e. holders of Ph.D. degree or have been awarded Ph.D. degree in accordance with the 2009 Regulations. The two expressions are separated by the word "or" which is disjunctive and leads to two separate and distinct categories. The candidates who are exempt from qualifying the minimum eligibility condition of NET/SLET/SET are those Ph.D. candidates who have obtained such Ph.D. degree prior to notification of 2009 Regulations otherwise, the words 'Ph.D. or' loses its meaning. The wording of the Rule makes one class of the Ph.D. Degree holders who have obtained degree in terms of 2009 Regulations. The other class is of candidates who have obtained Ph.D. Degree prior to publication of 2009 Regulations. It is well settled that all words of the statute, includes the statutory Rules, have to be given meaning. None of the words can be excluded from consideration or are otiose. Therefore, the expression „Ph.D. or‟ has to mean Ph.D. degree holders who have been granted degree prior to publication of 2009 Regulations.
12. In view of the above, we are of the opinion that the finding recorded by the learned Single Bench cannot be sustained. Therefore, the order passed by the learned Single Bench is set aside. The Letters Patent Appeal and the writ application are allowed. The respondents are directed to consider the appellants as eligible Patna High Court LPA No.354 of 2016 dt.16-01-2017 11/11 candidates and to act in accordance with law thereafter.
(Hemant Gupta, ACJ)
(Dinesh Kumar Singh, J)
P.K.P.
AFR/NAFR A.F.R.
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